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Crichfield v. Grand Wailea Company7/31/2000
or reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or make such other order as is just.
In his sworn declaration attached to the Crichfields's memorandum in opposition, the Crichfields' counsel explained that the copies of the unsigned affidavits were being proffered because the Crichfields were on the mainland and he had not yet received the signed and notarized affidavits back from them. Thus, the circuit court would have been acting within its discretion if it had granted a continuance until the signed and notarized affidavits could be obtained. Instead, the circuit court proceeded with the hearing and deferred filing its order and final judgment until after the signed and notarized affidavits had been filed. Accordingly, the affidavits were a part of the record at the time the circuit court filed its order and judgment, and the factual allegations contained therein were properly considered by the circuit court.
We also reiterate that "mere suspicion that an affiant . . . may be lying" is not an appropriate basis upon which to grant or deny a motion for summary judgment. Cordeiro v. Burns, 7 Haw. App. 463, 470, 776 P.2d 411, 416 (1989) (quoting Haase v. Webster, 807 F.2d 208, 212 (D.C. Cir. 1986)). Although, as the ICA has held, the credibility of an affiant or deponent, standing alone, does not produce a genuine issue of material fact, the fact remains that, where the record evinces a conflict in the evidence regarding the content of an affidavit or deposition, then the issue of the affiant's or deponent's credibility involves more than a mere bald allegation that an affiant's or deponent's statements are self-serving fabrications, and, therefore, the credibility of the affiant or deponent must be assessed by the trier of fact. Compare Corderio, 7 Haw. App. at 469-71, 776 P.2d at 416-17 (credibility of deponent did not constitute a genuine issue of material fact where deposition was not self-serving and deponent's statements on record were not contradictory), and Costa v. Able Distributors, Inc., 3 Haw. App. 486, 488-89, 653 P.2d 101, 104 (1982) (credibility of affiant did not constitute a genuine issue of material fact absent discrepancy or contradiction in affiant's statements on record), with Jacoby v. Kaiser Foundation Hospital, 1 Haw. App. 519, 526-28, 622 P.2d 613, 618 (1981) (credibility of affiant constituted an issue for the trier of fact).
For the reasons discussed below, if the Crichfields, from their subjective viewpoint, occupied the hotel's land for a commercial purpose -- to wit, to have lunch, as they alleged in their affidavits -- then HRUS would not immunize Grand Wailea from negligence liability.
D. The Legislative History Of HRUS Confirms That The Statute Was Not Intended To Immunize Hotels, Resorts, Or Other Commercial Establishments From The Duty Of Care That Such A Commercial Establishment Would Otherwise Owe To Persons On The Commercial Establishment's Premises.
When, in 1969, the senate was considering S.B. No. 56, the genesis of HRUS, the Committee on Lands and Natural Resources reported in relevant part:
The purpose of this bill is to limit the liability of landowners who permit persons to use their property for recreational purposes without charge.
This bill would not affect the landowners' common law duty of care towards house guests, business invitees, playmates of his [or her] children, or if he [or she] is guilty of willfully or maliciously failing to guard or warn persons against a dangerous c
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